The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Thursday, December 02, 2004

More of PIPEDA and litigation: Goldberg v. St. John 

PIPEDA made a brief appearance in an Ontario court in an interlocutory decision of Case Management Master Thomas Hawkins rendered at the end of September 2004. In Goldberg v. St. John, the defendant sought the plaintiff's client records to test a lost income claim. The plaintiff had been an employee of CIBC World Markets and he resisted the discovery request on the basis that the information should be subject to privilege and that its disclosure was barred by PIPEDA. He lost on the PIPEDA claim:

Goldberg v. St. John:

"[3] In order to challenge and test the plaintiff's evidence as to lost income, the defendants seek the following information: production of client records on all the plaintiff's customers for the period from 1997 to the present including client names and addresses. The defendants wish to track all the plaintiff's commission revenue and to understand why the plaintiff's commission revenue increased or decreased. Some 150 clients are involved. The theory of the defence is that some or all of the income which the plaintiff has lost and will lose in the future was and will be the result of factors unrelated to the accident.

[4] The plaintiff and CIBC World Markets Inc. resist this request on the ground that the information which the defendants seek is information which they are required to keep confidential. This confidentiality obligation is found in several places. First there is the Investment Dealers Association National Instrument 33-102. Secondly, there are the confidentiality of client information provisions found standard 'B' in the Conduct and Practices Handbook for Securities Industry Professionals prepared by The Canadian Securities Institute.

[5] The plaintiff and CIBC World Markets Inc. also rely upon the privacy provisions of the Personal Information Protection and Electronic Documents Act, S. C. 2000 ch. 5. I do not base my decision on this statute. I am not persuaded that this federal statute applies to a provincially regulated business and its employees such as CIBC World Markets Inc. and the plaintiff. CIBC World Markets Inc. is a stockbroker, not a bank."

Once again, it has been held that PIPEDA does not shield a party to litigation from disclosing relevant records. But this also reminds one that the info may be shielded by other legal and procedural rules.

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